Kerala High Court: While deciding whether a conviction for theft can stand when the only material connecting the accused to the crime is a confession allegedly made by a co-accused to the police officer while in custody, a Single Judge Bench of M.B. Snehalatha, J., held that a confession to a police is legally non-existent and cannot be used against a co-accused under Section 30 of the Evidence Act, 1872 (‘Evidence Act’). The Court did not find any independent evidence to connect Accused 2 with the crime, and therefore, set aside his conviction and acquitted him.
Background
On 8-9-2016, during night patrolling, the Kolathur police intercepted a motorcycle ridden by Accused 1 with Accused 2 as pillion rider. On seeing the police, the pillion rider took to his heels. Accused 1 could not furnish any documents or any satisfactory account for possession of the motorcycle, leading to its seizure and registration of an FIR.
On interrogation, Accused 1 allegedly confessed that he, along with Accused 2, had committed theft of the motorcycle from the residential premises of the de facto complainant for which an FIR was registered at Nattukal Police Station. The Kolathur crime was transferred and clubbed with Nattukal crime. After the investigation, a final report was filed against both the accused persons for an offence under Section 379 read with Section 34 of the Penal Code, 1860 (‘IPC’). Accused 2 pleaded not guilty to the charge.
The Trial Court convicted both the accused persons and sentenced them to rigorous imprisonment for three years with a fine of Rs 5000 each with a further three months’ rigorous imprisonment on default and allowed set-off. Accused 2 preferred an appeal but the Appellate Court confirmed the conviction and sentence against him, and consequently, he filed the present revision petition.
Accused 2 assailed the concurrent finding of conviction and order of sentence on the grounds that no evidence was produced by the prosecution which connected him with the theft and that both the Courts below relied only on the confession allegedly given by Accused 1 to the police, which was inadmissible. On the other hand, the Public Prosecutor contended that the prosecution had established beyond a reasonable doubt that the accused persons committed the theft and that Accused 1’s confession implicated Accused 2, justifying the concurrent findings.
Analysis and Decision
The Court noted that Sections 24 to 30 of the Evidence Act embody the law of confession (Section 22 to 24 of the Bharatiya Sakshya Adhiniyam, 2023). The Court opined that normally, if a statement made by an accused person is found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, Section 30 of the Evidence Act provides that such a confession may be taken into consideration even against a co-accused who is being tried along with the maker of the confession.
The Court referred to Bhuboni Sahu v. King, 1949 SCC OnLine PC 12, which clarified that although a confession against a co-accused is not evidence, yet as per Section 30 of the Evidence Act, a Court may take it into consideration and act upon it. However, such confessions do not amount to proof, and it is only one of the elements in the consideration of all other facts proved in a particular case, and therefore, there must be other evidence before such confession is taken into consideration.
The Court relied on Kashmira Singh v. State of M.P., (1952) 1 SCC 275, wherein it was observed that the proper way is, first, to marshal the evidence against the accused excluding the confession of the co-accused altogether from consideration and see if a conviction could safely be based on it. If it is capable of belief independently of the confession, then it is not necessary to call the confession in aid.
The Court also referred to P. Krishna Mohan Reddy v. State of A.P., 2025 SCC OnLine SC 1157, which held that before a confession is taken into consideration against a co-accused, the said confession must be duly proved against the maker. It must be clearly established that such confession is neither vitiated by Section 24 of the Evidence Act nor rendered inadmissible by Section 25 thereof, which can only be ascertained during trial.
The Court observed that where a confessional statement is otherwise excluded or is inadmissible by virtue of Sections 25 or 26 of the Evidence Act, there can be no question of such confessional statements being made admissible against another co-accused with the help of Section 30. The Court opined that the expression ‘confession proved’ in Section 30 of the Evidence Act necessarily means a confession that is legally admissible. It is subject to Sections 24 to 26 of the Evidence Act and it does not override the prohibition contained in Section 25 of the Evidence Act.
The Court noted that the only thing connecting Accused 2 with the theft was the confession made by Accused 1 to the police while in custody, and observed that since the confession was given while Accused 1 was in custody, it was non-existent in the eye of law as per Section 25 of the Evidence Act, and therefore, Section 30 cannot be invoked in respect of such a confession.
Accordingly, the Court concluded that the prosecution failed to establish the involvement of Accused 2 in the commission of the offence, and while allowing the revision petition, set aside the conviction and sentence and acquitted him.
[Shyjal. C v. State of Kerala, 2026 SCC OnLine Ker 907, decided on 14-1-2026]
Advocates who appeared in this case:
For the Accused: T.A. Shain, Advocate.
Amicus Curiae – R. Harikrishnan, Advocate.
For the Respondent: Public Prosecutor, Maya. M.N., GP
Buy Penal Code, 1860 HERE
